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Himachal Pradesh High Court · body

2017 DIGILAW 20 (HP)

NTPC Limited v. Bhajan Dass

2017-01-06

SANJAY KAROL

body2017
JUDGMENT Mr.Sanjay Karol, J. (Oral) The acquisition proceedings pertain to the Collector''s award No. 39 of 2005, dated 23.9.2005, pertaining to village Sunni - III, Tehsil Sunni, Distt. Shimla, Whether reporters of Local Papers may be allowed to see the judgment? H.P. In terms of the said award, the market value of the acquired land stands determined, classification wise from Rs. 87,376/- to Rs. 3,93,170/-. In the impugned land reference petition, the same stands re-determined by the Reference Court @ Rs. 5,00,000/- per bigha, on uniform basis, for the reason that: (a) The observations made by the Collector in its award itself justified such enhancement. 2. If the claimant(s) are held legally entitled for rates, on uniform basis, irrespective of classification and category, then the increase in the amount of redetermination of the market value of the acquired land is only marginal. The rates stand increased from Rs. 3,93,170/- to Rs. 5,00,000/- per bigha. 3. In terms of award No. 39 of 2005, dated 23.9.2005, Collector Land Acquisition, determined the market value of the acquired land awarding different rates, classification/category wise, ranging from Rs. 87,376/- to Rs. 3,93,170/-per bigha. 4. In terms of the impugned award dated 30.10.2009, passed by District Judge (F), Shimla, H.P., in Land Reference Petition No. 65-S/4 of 08/06, titled as Bhajan Dass & others v. State of Himachal Pradesh through Secretary (Power) & others , the Reference Court redetermined the market value of the entire acquired land, irrespective of its category/classification, by uniformly awarding a sum of Rs. 5,00,000/- per bigha. 5. Certain facts are not in dispute: (i) 1820.12 sq. mts. of land came to be acquired in village Sunni - III, Tehsil Sunni, Distt. 5,00,000/- per bigha. 5. Certain facts are not in dispute: (i) 1820.12 sq. mts. of land came to be acquired in village Sunni - III, Tehsil Sunni, Distt. Shimla, H.P., with the publication of notification in the official gazette on 6.12.2000, so issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act); (ii) The acquisition proceedings concluded with the passing of Collector''s award No. 39 of 2005 dated 23.9.2005, under Section 11 of the Act and the State taking over possession of the land; (iii) The purpose of acquisition being construction of Dam, commonly known as Kol Dam; (iv) Dissatisfied with the offer made by the Collector, claimants filed petitions under Section 18 of the Act and on the basis of evidence led by the parties, disposed of in terms of impugned award; (v) While the claimants accepted the award, only the beneficiary preferred the present appeal(s) under Section 54 of the Act; (vi) It is the common case of parties that the entire acquired land came to be submerged with the construction of Dam by the beneficiary. Also there is no evidence on record of either any requirement or any developmental activity carried out on the spot. 6. It is contended on behalf of the claimants that since they have not assailed the impugned award, as such, they are satisfied with the market value, so determined by the Reference Court. 7. With these admitted/undisputed facts, material placed on record by the parties is being appreciated for just decision of the case. 8. It is a settled principle of law that onus of establishing true market value of the acquired land, higher than the one which stands determined by the Collector, is always upon the claimants. 9. Perusal of the Collector''s award reveals that claimants themselves claimed compensation @ Rs. 20,00,000/- per bigha. But then it was category/classification wise. 10. It is a settled principle of law that Collector''s award is a mere offer and in the proceedings under Section 18 of the Act, Court is duty bound to determine the market value, which is just, fair and reasonable, on the basis of material placed on record by the parties. The conclusion with respect to re-determination of the market value, in the instant case, is clearly based on the evidence led by the claimants, which cannot be said to have been appreciated erroneously. The conclusion with respect to re-determination of the market value, in the instant case, is clearly based on the evidence led by the claimants, which cannot be said to have been appreciated erroneously. Material, in its entirety, stands considered by the Court below. 11. With vehemence, Mr. Neeraj Gupta, learned counsel, contends that Reference Court erred in considering the fact that before the Collector, claimants had themselves elected for award of compensation on the basis of classification/category, hence they were precluded from seeking re-determination of the market value of the acquired land on uniform basis. 12. To rebut the same, Kr. Bhupender Singh, learned counsel, seeks reliance on the decision rendered by the Apex Court in Chimanlal Hargonvinddas v. Special Land Acquisition Officer, Poona and another, AIR 1988 SC 1652 ; (1988) 3 SCC 751 , wherein the Court made the following observations:- "4 The following factors must be etched on the mental screen : (1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court. (3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of Notifications under Sections 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. (7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value. (8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of land.) (9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (10) The most comparable instances out of the genuine instances have to be identified on the following considerations : (i) proximity from time angle (ii) proximity from situation angle. (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may beevaluated interms of price variation as a prudent purchaser would do. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may beevaluated interms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors :- (For table see below) Plus factors Minus factors 1. Smallness of size. 1. largeness of area. 2. Proximity to a road. 2. situation in the interior at a distance from the road. 3. frontage on a road. 3. narrow strip of land with very small frontage compared to depth. 4. nearness to developed area. 4. lower level requiring the depressed portion to be filled up. 5. regular shape. 5. remoteness from developed locality. 6. level vis-a-vis land under acquisition. 6. some special disadvantageous factor which would deter a purchaser. 7. special value for an owner of an adjoining property to whom it may have some very special advantage. (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say 10000 eq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction byway of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The factor can be discounted by making a deduction byway of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense." (Emphasis supplied) Reliance is also sought on the decision rendered by the Apex Court in Special Land Acquisition Officer v. Karigowda and others, (2010) 5 SCC 708 . 13. Significantly while responding to the reference petition or at the time of recording evidence, such objection never came to be taken by the beneficiary. Even before this Court, it is not a pleaded ground in the memo of appeal. In fact, as is evident from the reference petition, claimants had claimed rates @ Rs. 20,00,000/- per bigha, on uniform basis. 14. In any event, Reference Court is duty bound to determine such market value, which is just, fair and reasonable. 15. The law for award of compensation at uniform rates, when the purpose of acquisition is common and no developmental activity is required to be carried out is no longer res integra and stands settled by Hon''ble the Supreme Court in Viluben Jhalejar Contractor (Dead) by LRs v. State of Gujarat, (2005) 4 SCC 789 (paras 22 and 23); Himmat Singh and others v. State of Madhya Pradesh and another, (2013) 16 SCC 392 (para 34); Peerappa Hanmantha Harijan (Dead ) By Legal Representatives and others v. State of Karnataka and another, (2015) 10 SCC 469 (paras 80 and 81); as also this Court in RFA No. 953 of 2012, titled as Land Acquisition Collector & another v. Jatinder Singh, decided on 01.06.2016 and other connected matters. As such, at this point in time, in view of admitted/undisputed factual matrix, as noticed earlier, it would not be permissible for the beneficiary to raise such objections. 16. As such, at this point in time, in view of admitted/undisputed factual matrix, as noticed earlier, it would not be permissible for the beneficiary to raise such objections. 16. Now it is a settled principle of law that if the entire land is put for a public use and no area is left out for carrying out any developmental activity, then the claimants are entitled for compensation for the entire acquired land, at uniform rates, regardless of its categorization. 17. The apex Court in Haridwar Development Authority v. Raghubir Singh & others, (2010) 11 SCC 581 has upheld the award of compensation on uniform rates. Also it has acknowledged the principle of providing increase in the market value up to 10% to 12% per year for the land situated near urban areas having potential for nonagricultural development. 18. In Union of India v. Harinder Pal Singh and others 2005(12) SCC 564 , while determining the compensation for acquisition of land pertaining to five different villages, the apex Court uniformly awarded a sum of Rs. 40,000/- per acre, irrespective of the classification and the category of land. 19. Further, in Nelson Fernades v. Special Land Acquisition Officer 2007(9) SCC 447 while dealing with the case where the land was acquired for laying a Railway line, the Court held that no deduction by way of development charges was permissible as there was no question of any development thereof. 20. Similar view stands taken by this Court in Gulabi and etc. v. State of H.P., AIR 1998 HP 9 and later on in H.P. Housing Board v. Ram Lal & Ors. 2003(3) Shim. L.C. 64 , which judgment has attained finality as SLP (Civil) No. 15674-15675 of 2004 titled as Himachal Pradesh Housing Board v. Ram Lal (D) by LRs & Others, filed by the H.P. Housing Board came to be dismissed by the Apex Court on 16.8.2004 . 21. This judgment was subsequently referred to and relied upon by this Court in Executive Engineer & Anr. v. Dilla Ram {Latest HLJ 2008 HP 1007} and relying upon the decision of the Apex Court in Harinder Pal Singh (supra), wherein the market value of the land under acquisition situated in five different villages was assessed uniformly irrespective of its nature and quality, also awarded compensation on uniform rates. 22. v. Dilla Ram {Latest HLJ 2008 HP 1007} and relying upon the decision of the Apex Court in Harinder Pal Singh (supra), wherein the market value of the land under acquisition situated in five different villages was assessed uniformly irrespective of its nature and quality, also awarded compensation on uniform rates. 22. It is a matter of fact that the entire land was put to public purpose. Dam stood constructed thereupon. It was used for only one purpose and as such there cannot be any error in uniform determination of the market value of the acquired land. 23. It is a matter of record that the claimants examined one witness i.e. Nokh Ram (PW-1) and the beneficiary examined three witnesses namely Jagat Pal, kanungo (RW-1), P. K. Sharma, Dy. Manager NTPC (RW-2) and Goverdhan Singh, patwari (RW-3). 24. Beneficiary also placed on record Collector''s Award No. 17 of 2004 (Ext. RW-2/A), pertaining to village Kasol and exemplar sale deeds (Ext. RW-1/B to RW-1/H and RW-1/J to RW-1/N). Significantly neither the exemplar sale deeds nor the award could have been considered, for none stepped into the witness box, explaining the comparability of the acquired land with that of the exemplar sale deeds/award. Also award (Ext. RW-2/A) pertain to village Kasol which is situate in a different district. 25. No doubt, in view of the statutory provisions (Section 51-A of the Act) and the law laid down by the Apex Court in Cement Corpn. of India Ltd. v. Purya and others, (2004) 8 SCC 270 , these sale transactions cannot be ignored, but however, there is no evidence on record, establishing comparability of the acquired land with these exemplar sale transactions. In this view of the matter, these sale transactions cannot be accounted for, for just determination of a fair market value of the acquired land. 26. On the other hand, record reveals that even the claimants did not place any documentary evidence on record. But from the testimony of Nokh Ram (PW-1) it is quite apparent that the acquired land which is just 1820.12 sq. mts., had great potential, for purely on account of its locational advantages, having access by road and of modern facilities, such as water, electricity, hospital, telecommunication and other government institutions close by, it could be put to great commercial use. mts., had great potential, for purely on account of its locational advantages, having access by road and of modern facilities, such as water, electricity, hospital, telecommunication and other government institutions close by, it could be put to great commercial use. Locational advantages of the acquired land also remained undisputed through the testimony of witnesses of the beneficiary. It is a matter of record that Sunni is an up-growing township, having all modern facilities. Historic place of Tatttapani, having heritage value, is just at a distance of 5 kms. Locational advantage of the acquired land also stands acknowledged by the Collector in the award in question. As such, in the given facts and circumstances, the Reference Court, correctly re-determined the market value of the acquired land @ Rs. 5 lacs per bigha. 27. Reliance by the beneficiary on the decision rendered by the Apex Court in Trishala Jain and another v. State of Uttranchal and another, (2011) 6 SCC 47 , is also misplaced for the decision is rendered in the attending facts and circumstances totally different from the one in hand. Also this Court has otherwise dealt with the issue in the earlier part of the judgment. 28. No other point urged or proved. 29. Hence in the given facts and circumstances, no interference is warranted. It cannot be said that the findings returned by the Reference Court are perverse, illegal or erroneous. As such, present appeal stands dismissed, so also pending application(s), if any. 30. Cross-objection, if any, shall also stand disposed of. 31. Learned counsel for the parties jointly submit that decision rendered in the present appeal would have an automatic bearing on the other connected appeals, arising out of Collector''s award No.39 of 2005, pending before this Court, if any. Registrar (Judicial) to take appropriate instructions from Hon''ble the Chief Justice for listing of such connected appeals, before the appropriate Court particulars whereof shall also be supplied by learned counsel for the parties.